Solicitor General

Author:Erwin N. Griswold

Page 2447

The solicitor general is a senior officer of the United States Department of Justice with special responsibilities in the representation of the United States and its officers and agencies before the Supreme Court, and in the administration of justice in the federal appellate courts.

The title?solicitor general?like that of ATTORNEY GENERAL is derived from English usage, but the functions of the offices are quite different in the United States. In England, both offices are political in the sense that they are filled by members of Parliament. In the United States, neither the attorney general nor the solicitor general is a member of Congress. The attorney general is a member of the Cabinet. He advises the President, works with members of Congress on legislative matters and judicial appointments, holds press conferences and is otherwise responsible for governmental and public relations. He is also charged with administering a large department which includes the FEDERAL BUREAU OF INVESTIGATION, the Bureau of Prisons, the Immigration and Naturalization Service, and other important agencies. Though he has policy and administrative responsibilities of great importance, he has virtually no time to be a lawyer in the traditional sense.

Until 1870, the attorney general functioned alone with only a small staff, and in association with the United States attorneys in the various states, over whom he had little authority. In 1870, apparently as an economy device (to eliminate the cost of retaining private lawyers in the increasing number of cases), Congress established the Department of Justice, with the attorney general as its head. The statute provided that there should be in the Department "an officer learned in the law, to assist the Attorney-General in the performance of his duties, to be called the solicitor-general." Under the statute the solicitor general was authorized in the attorney general's discretion to argue "any case in which the government is interested" before the Supreme Court, or in any federal or state court." These statutory provisions remain to the present day, essentially unchanged.

In the years since 1870, the duties of the Department of Justice have greatly increased. Until 1953 the solicitor general was the second officer in the Department of Justice and served as acting attorney general in the attorney general's absence. The responsibilities of the attorney general have made it necessary to add a deputy attorney general and an associate attorney general, so that the solicitor general is now the fourth ranking officer in the department. But the solicitor general's responsibilities have remained essentially unchanged in substance?though greatly increased in volume?over the past sixty years. He remains the leading officer in the department functioning primarily as a lawyer.

As the pattern has developed, the solicitor general is not a politician, and he has only a minimum of political responsibility. His function is to be the government's top lawyer in the courts, particularly the Supreme Court, and by well-established tradition he is allowed considerable independence in carrying out this role. Bent and Schloss, describing the office as "the bridge between the Executive and the Judiciary," have said that "[t]he Solicitor General must often choose between incongruous roles and differing loyalties. He is still the government's lawyer, and he most frequently acts as an advocate. On the other hand, he also functions as a reviewer of government policies, an officer of the Court, and ? a protector of the public interest."

In more specific terms, the organization of the Department of Justice assigns to the solicitor general four areas of responsibility. Two of these are of primary importance. First, the solicitor general is responsible for the representation of the United States and its officers and agencies in all cases before the Supreme Court of the United States. The BRIEFS which are filed on behalf of the government in the Supreme Court are prepared by him or under his direction. He argues the most important cases himself, and assigns the argument in other cases to members of his staff, to other lawyers in the Department of Justice or to lawyers for the agencies which may be involved in the cases before the Court. Second, the Solicitor General decides whether the United States will APPEAL in any case which it loses in any court, state or...

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